(dissenting).
The major, and indeed the sole, issue in this case is whether the government proved that the defendant had the capacity to conform his conduct to the requirements of the law at the time of the alleged crime. My reading of the portion of the charge submitted to the jury by the district court concerning the relationship of the delusional motivation of the defendant to his conduct differs from that of the majority. In my view, the presence of an incorrect statement of law and the confusing nature of the charge tainted it sufficiently to preclude affirmance of the judgment. It is for that reason that I respectfully dissent.
A.
The function and meaning of the insanity defense in the present day are best understood against the backdrop of its historical development. This is particularly so here, where the interpretation of the jury charge is, in my judgment, most appropriately made with reference to the broader societal and criminological aspects of the insanity defense.
Until the thirteenth century, mental disease or lack of mental capacity was not a defense in a criminal case.1 Then, as the law “moved from a concept of strict liability to one based on fault,” the notion developed that guilt includes a mental element. This evolution, tied to the influence of canon law in the ecclesiastical courts, led to a new concern with moral guilt, and slowly to the whole concept of mens rea.2 Exculpation on the ground of insanity first appeared in the late thirteenth century, when Henry III began a practice of pardoning those he believed insane. During the succeeding reign of Edward I, the royal pardon became a routine matter in cases involving the conviction of a defendant who was “mad” when he committed the crime.3
The courts ultimately responded to the regular invocation of the royal pardon by adopting insanity as a defense to a criminal charge.4 It was one of a set of defenses based upon the absence of the criminal intent that was by then an established element of certain crimes.5 “And when the law began to take notice of insanity as a legal defense to a criminal charge it was on the theory that one who was insane had no mind and hence could not have mens rea.”6 By the sixteenth century, the insanity defense was an accepted part of the criminal law.7
Through the eighteenth century, a defense of insanity would lie only if the de*887fendant was totally deprived of reasoning ability, understanding, or memory, so that there was no possibility that he had mens rea.8 In time, this rigid rule too began eroding, its demise most clearly marked by the acceptance in Had field’s Case9 of insane delusions as a defense to a charge of attempting to assassinate the King.10 The development of the insanity defense in Britain, insofar as it has relevance to the American situation, was capped in M’Naghten’s Case. There the House of Lords ruled that the insanity defense applies if the defendant “was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”11
The standard set out in M’Naghten remained the basic rule of British and American courts for a century.12 Subsequent developments in this country, through the adoption of the controversial Durham “product” formulation in the District of Columbia Circuit13 and of the Currens rule by this Court,14 are too well known to require repetition.15
The historical narrative of the unfolding of insanity as a defense to a criminal charge highlights its contemporary function and usefulness. It is still connected, as it was in its incipiency, to the absence of mens rea. Without the required mental element, the law will not normally recognize criminality16 or countenance punishment. The insanity of the defendant is said to demonstrate the absence of the mental element.17 Closely related, and also tied to the common law growth of the defense, is the belief that the criminal sanction should not be imposed on one who is not morally blameworthy; an insane person, acting without criminal intent or volition, is not culpable in that sense.18 Finally, the insanity defense recognizes a deterrent theory of the criminal law. A defendant who is insane, and therefore is unable to control his behavior, so goes the argument, cannot be deterred by punishment. Since punishment will serve no deterrent purpose, it ought not be meted out.19
Of course, an acquittal by reason of insanity does not mean that the defendant will necessarily go free. A defendant who is found not guilty by reason of insanity in a federal case is released, but with the *888expectation that State authorities will commence civil commitment proceedings.20
B.
The formulation of the test for the insanity defense in this Court was set out in Currens fifteen years ago. As stated by then-Chief Judge Biggs, Currens prohibits the jury from finding the defendant guilty if it is “satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.”21 Put another way, Currens requires that the defendant be found not guilty by reason of insanity if, once the issue of sanity is raised, the government fails to prove that when he committed the prohibited act, the defendant had substantial capacity to conform his conduct to the requirements of the law. The Currens standard has been undeviatingly adhered to by this Court since its adoption,22 and its continuing viability is not questioned today. Consequently, the issue before us is whether the charge given to the jury complied with the strictures of Currens.
The two critical sentences in the ten-sentence portion of the jury charge challenged by Austin are as follows: “A delusional motive alone is never a defense where the act done or omitted is a crime. So, the motive of the accused is immaterial except insofar as evidence of motive may aid determination of state of mind or intent.” Through his counsel, Austin objected strongly to that portion of the charge. The basis of the objection, which is pursued vigorously in this Court, is that the presence of these two sentences transgressed the standards established in Currens, and that the conviction therefore must be reversed. The government emphasized in its summation in the trial court that delusional motivation is not a defense to a criminal act, and continues in this Court to contend that the instruction was not erroneous. Resolution of the disagreement is of the utmost importance, since, although other arguments are presented by Austin, these two sentences from the jury charge are at the heart of the appeal.
On the basis of its review of the whole charge and its comparison of the charge with Currens, the majority holds that the sentences questioned do not constitute reversible error. I cannot agree.
Three lay witnesses and five expert witnesses testified that Austin had a paranoid belief that certain people were plotting to “get” him and were coming after him. Austin’s fear of being chased and caught was described by several of the expert witnesses as a delusional motivation that led him to conclude that he needed money in order to escape his pursuers, and further to believe that it was necessary for him to rob a bank in order to secure the money.
While it would thus appear that Austin intended to take money from the bank, the jury could have concluded — with reference to the Currens test — that the government still had not proven that Austin had substantial capacity to conform his behavior to the requirements of the law. In fact, one expert witness described Austin’s behavior at the time of the attempted bank robbery in exactly those terms. The "jury could have reached this result if it believed that Austin’s delusions were so strong that they overcame his ability to control his behavior, *889and that he could not conform his conduct to the law. Had the jury chosen to take this route, acquittal would have followed.
Acquittal may not have served the first rationale of the insanity defense — punishing only those who act with criminal intent — since Austin did intend to rob the bank. But it would have been consistent with the remaining rationales — avoiding punishment for those who are not morally blameworthy for their acts or for those who are not deferrable. In any event, an acquittal would have been consistent with the rule laid down in Currens.
In the first sentence of the two that are quoted from the charge — “A delusional motive alone is never a defense where the act done or omitted is a crime.” — the jurors were in essence advised not to consider Austin’s motivation if they believed such motivation was delusional in nature. Yet, as just shown, a finding of motivation of that kind may well have led to a verdict of not guilty. Accordingly, that sentence of the charge would seem to be incorrect as a matter of law. The district court should not have taken from the jury the right to connect Austin’s delusional motivation with his ability or inability to conform his behavior to the law, and to find lack of criminal culpability under Currens if it chose.
The second of the quoted sentences — “So, the motive of the accused is immaterial except insofar as evidence of motive may aid determination of state of mind or intent.” — appears to contradict the first. It is not an incorrect statement, but its conjunction with the preceding sentence, at the very least, may have confused the jury.
In addition to the incorrect and confusing portion of the charge, the district court gave the jury a correct charge, tracking the language of Currens23 and providing the jury with other correct statements of applicable legal principles. I recognize that the propriety of a jury instruction is generally to be assessed by viewing the charge as a whole.24 But I must conclude that, in the circumstances of this case, the charge was nonetheless so sullied by the two sentences just described that reversal of the judgment ought to ensue.
Decisions of both the Supreme Court and this Court establish that a conviction in a criminal case cannot stand if the charge to the jury was misleading. The major Supreme Court opinion setting out the rule is that of Justice Frankfurter, writing for the Court in Bollenbach v. United States.25 That case involved a supplementary instruction given to the jury in a prosecution for conspiracy and for transportation of securities in interstate commerce, knowing them to have been stolen. After the jury had been out for seven hours, and found itself totally deadlocked, it asked the trial court for further instructions. In response, the court ultimately stated that if the defendant possessed the bonds in one state shortly after they were stolen in another, the jury could presume that he had stolen them and had transported them across state lines. The jury retired, and returned in five minutes with a verdict of guilty. The Supreme Court held that the instruction had been “simply wrong,” stating flatly that “[a] conviction ought not to rest on an equivocal direction to the jury on a basic issue. . A charge should not be misleading.”26
In reversing a conviction later in the same term, in M. Kraus & Bros., Inc. v. United States,27 a plurality of the Court *890grounded its opinion in the Bollenbach rule. The Justices reasoned that although the charge contained correct portions as well as incorrect ones, the former “were so intertwined with the incorrect charge as to negative their effect.”28
These Supreme Court precedents have been followed by this Court in a number of cases. In Government of the Virgin Islands v. Carmona,29 the trial judge refused to instruct the jury that it could not convict the defendant unless it found that he had specific intent to commit the crime. Emphasizing that specific intent was an element of the crime, the Court reversed, since “an instruction must fairly set forth all of the essential elements of the crime charged.” Further reliance was placed upon the Supreme Court’s decision in Bollenbach for the broad proposition that “a misleading instruction is reversible error.”30 The same result, in the context of an erroneous instruction concerning entrapment, the primary defense used at the trial, was reached in United States v. Meade.31 In United States v. Silver,32 the intermixture of correct instructions with the incorrect, where they described the defendant’s sole defense, was held sufficient error to require reversal.
The doctrine established in these cases should govern the disposition of the matter now before us. The sanity of the defendant in a criminal case is an element of the crime, and, once put in issue by the defendant, must, at least in a federal prosecution, be proven beyond a reasonable doubt by the government.33 Thus, in this case, sanity was an issue “basic” to the prosecution, in the sense contemplated in Bollenbach.34 Heed should also be paid to the principle articulated by this Court in Carmona — that the jury instructions concerning the elements of the offense must be given with particular care. Further, it should be borne in mind, as set forth in Meade, that error in that portion of the charge describing the one defense relied upon at trial may lead to reversal. The reasons expressed by this Court for its decisions in those two cases are squarely applicable to Austin’s appeal. In addition, the incorrect and confusing *891portion of the jury charge appears to have been closely associated with the correct segment, a situation that led to reversals in both Kraus and Silver.
Application of the Bollenbach doctrine is particularly compelling when the misleading instruction involves insanity, since it is only upon proof of the sanity of the defendant that the right of the government to invoke the criminal sanction rests. The scope of the criminal law is circumscribed by its intersection with the insanity defense and the rationales that historically and contemporaneously undergird the defense. Where a jury cannot say that the defendant was capable of forming the intent to commit the alleged crime or that he was morally blameworthy for his conduct, or where imposition of a penalty would not have any deterrent effect, punishment is not appropriate. In my view, the jury in this case was not given an unfettered opportunity to make that determination.35
Accordingly, I would reverse the judgment of the district court and remand the matter so that a jury might determine, pursuant to a charge that is free from both doubt and error, whether the government has proven beyond a reasonable doubt that the defendant had substantial capacity to conform his conduct to law at the time of the alleged crime.
. R. Perkins, Criminal Law 738 (1957); Gray, The Insanity Defense: Historical Development and Contemporary Relevance, 10 Am.Crim.L. Rev. 559, 562 (1972); Sayre, Mens Rea, 45 Harv.L.Rev. 974, 1004 (1932).
. Gray, supra at 560; Sayre, supra at 982-83.
. R. Perkins, supra at 738; Gray, supra at 562 and n.13; Sayre, supra at 1004-05.
. Gray, supra at 562; Sayre, supra at 1005.
. Gray, supra at 561. See Sayre, supra at 1004-16.
. R. Perkins, supra at 739 (emphasis in original).
. Gray, supra at 562.
. R. Perkins, supra at 740; Gray, supra at 562-63; Sayre, supra at 1005.
. 27 How.St.Tr. 1281 (K.B. 1800).
. Gray, supra at 564.
. 10 Cl. & F. 200, 210, 8 Eng.Rep. 718, 722 (H.L. 1843).
. Gray, supra at 567.
. Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954).
. United States v. Currens, 290 F.2d 751 (3d Cir. 1961).
. See, e. g., United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 972-81 (1972); Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 869-75 (1954); Diamond, From M’Naghten to Currens, and Beyond, 50 Calif.L. Rev. 189, 190 (1962); Gray, supra at 567-72.
. The exception, of course, is the so-called regulatory or public welfare offense. United States v. Dotterweich, 320 U.S. 277, 280-81, 64 S.ct. 134, 136, 88 L.Ed. 48, 51 (1943); United States v. Balint, 258 U.S. 250, 251-52, 42 S.Ct. 301, 302, 66 L.Ed. 604, 605 (1972). See the lengthy discussion of the problem in Morisette v. United States, 342 U.S. 246, 250-63, 72 S.Ct. 240, 243-49, 96 L.Ed. 288, 293-300 (1952).
. Budd v. California, 385 U.S. 909, 912-13, 87 S.Ct. 209, 210, 17 L.Ed.2d 138, 139 (1966) (Fortas, J., dissenting from denial of cert.); R. Perkins, supra at 739; Keedy, Insanity and Criminal Responsibility, 30 Harv.L.Rev. 535, 538-39, 546-48 (1917).
. Overhoiser v. Lynch, 109 U.S.App.D.C. 404, 288 F.2d 388, 393 (1961) (en banc), rev’d on other grounds, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962); Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 876 (1954); Monahan, Abolish The Insanity Defense? — Not Yet, 26 Rutgers L.Rev. 719, 729 (1973); Sayre, supra at 1004.
. United States v. Currens, 290 F.2d 751, 773 (3d Cir. 1961); Davis, Some Aspects of the Currens Decision, 35 Temp.L.Q. 45, 46 (1961).
. United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir. 1975). In the District of Columbia, a defendant who is found not guilty by reason of insanity is automatically committed, although he must be granted a hearing within 50 days of his confinement for a determination of his eligibility for release. D.C.Code § 24-301(d) (1973).
. 290 F.2d at 774. The courts of appeals have not adopted a uniform test for the insanity defense. The variations are described in United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 973, 979-81 (1972).
. The test has been applied by this Court in Government of the Virgin Islands v. Bellott, 495 F.2d 1393 (3d Cir. 1974); United States v. Lutz, 420 F.2d 414 (3d Cir. 1970) (per curiam); and United States v. Benus, 305 F.2d 821 (3d Cir. 1962) (per curiam). See also United States v. Alvarez, 519 F.2d 1036, 1041-42 (3d Cir. 1975).
. Such an approach would appear to be mandated by the decision in Government of the Virgin Islands v. Bellott, 495 F.2d 1393, 1397 n.3 (3d Cir. 1974).
. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973); Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857, 858 (1926); United States v. Heavlow, 468 F.2d 842, 844 (3d Cir. 1972), cert. denied, 410 U.S. 933, 93 S.Ct. 1384, 35 L.Ed.2d 596 (1973).
. 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).
. Id. at 613, 66 S.Ct. at 405, 90 L.Ed. at 355. Accord, Estep v. United States, 327 U.S. 114, 115, 66 S.Ct. 423, 424, 90 L.Ed. 567, 569 (1946) (Frankfurter, J., concurring in the result).
. 327 U.S. 614, 66 S.Ct. 705, 90 L.Ed. 894 (1946).
. Id. at 627, 66 S.Ct. at 710, 90 L.Ed. at 901 (Murphy, J., announcing the judgment of the Court).
. 422 F.2d 95 (3d Cir. 1970).
. Id. at 99.
. 491 F.2d 592, 594-95 (3d Cir. 1974). Cf. United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir. 1975) (district court’s failure to give a particular charge is not reversible error where the charge would have been incorrect).
. 457 F.2d 1217, 1219 (3d Cir. 1972).
. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970); Davis v. United States, 160 U.S. 469, 486-88, 16 S.Ct. 353, 357-358, 40 L.Ed. 499, 505-506 (1895); Government of the Virgin Islands v. Bellott, 495 F.2d 1393, 1396 (3d Cir. 1974); United States v. Currens, 290 E.2d 751, 761 (3d Cir. 1961). Davis was based upon the Supreme Court’s supervisory power over criminal procedure in the federal courts, not upon constitutional grounds. Mullaney v. Wilbur, 421 U.S. 684, 696, 95 S.Ct. 1881, 1897, 41 L.Ed.2d 508, 516 (1975); Leland v. Oregon, 343 U.S. 790, 797, 72 S.Ct. 1002, 1006, 96 L.Ed. 1302, 1308 (1952). The Court therefore held in Leland that the Davis rule was not applicable to prosecutions in state courts, 343 U.S. at 797, 72 S.Ct. at 1006, 96 L.Ed. at 1308, although the decision in Mullaney casts serious doubt upon the continuing vitality of Leland. See Note, The Supreme Court, 1974 Term, 89 Harv.L.Rev. 47, 53 (1975).
. See 326 U.S. at 613, 66 S.Ct. at 405, 90 L.Ed. at 354. The importance of that portion of the jury charge dealing with elements of the offense is highlighted by the opinion of a plurality of the Supreme Court in Screws v. United States, 325 U.S. 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). The trial court in that case had given an instruction that incorrectly stated an element of the offense charged. No objection had been raised at trial, which would normally have prohibited the appellate court from addressing arguments based upon the jury charge. But the plurality of the Supreme Court declared that “where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion.” Id. at 107, 65 S.Ct. at 1038, 89 L.Ed. at 1506. (Douglas, J., announcing the judgment of the Court). If such an error is so fundamental that it can be recognized on appeal as plain error, see Fed.R. Crim.P. 52(b), it surely is a basic issue in the prosecution.
. It is difficult to square the result reached by the majority today with this Court’s recent decision in Government of the Virgin Islands v. Toto, 529 F.2d 278 (3d Cir. 1976). The Court there held that a trial judge’s extensive curative instruction to the jury on the improper introduction of impeachment evidence — evidence not implicating an element of the offense — was insufficient to overcome the prejudice caused by the erroneously admitted evidence. Based on that line of reasoning, the judgment of conviction was reversed. The error that occurred in Austin’s trial seems more pronounced, and thus makes out a stronger case for reversal. Not only did the error concern an element of the offense, which is critical in itself, but it emanated from the trial judge, not just from the prosecutor, and was given shortly after the government had emphasized the same point in its summation. We must not forget that “the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling,” Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841, 846 (1894), and that “jurors are ever watchful of the words that fall from him.” Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350, 354 (1946).